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Saturday, 28 February 2009

The IPKat's academic antipodean friend Louise Longdin has sent him this information concerning recent attempts at copyright reform in New Zealand:

"A highly controversial and heavy-handed amendment to New Zealand’s copyright law that greatly widens the responsibilities and liability of ISPs has been put on hold. It was poised to come into force today (28 February). The postponement of the new law (described in today’s New Zealand Herald Editorial as “sledgehammer like”) was sparked off by protestors demonstrating outside Parliament with mouths tapped shut and a week long nationwide, voluntary blacking out of internet sites by thousands of bloggers and social networkers. Stephen Fry, the well known actor, comedian and author also blacked out his Twitter profile in sympathy and an online petition was signed by 10,000 protesters. Section 92A of the Copyright (New Technologies) Amendment Act 2008 had been passed by the previous Government. The contentious provision, originally taken out at the Select Committee stage, was popped back in at the last minute by the Minister of Arts, Culture and Heritage when the Bill returned to the House for its final reading.

Section 92A mandates that ISPs adopt and “reasonably implement” a policy that provides for the termination “in appropriate circumstances” of the account of a “repeat infringer.” The amendment is considered to have overstepped the mark largely on two grounds. First, an ISP is very widely defined under the Act. It includes any person who offers the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing or who hosts material on websites or other electronic retrieval systems that can be accessed by a user. Thus it easily subsumes, and turns into active gatekeepers, not only the traditional ISPs but also all other persons and organisations who provide access to the internet for their employees, clients, teenage family members, flatmates, tenants or the public. Thus turned into downstream ISPS are libraries, shops, cafes, bars, companies, universities, parents, landlords, head tenants, businesses, schools, banks, medical practices as well as airports and railway stations. This would have been a real sea change for New Zealand for, unlike some countries (such as France and Italy in the writer’s own recent experience), it has never been the custom in this country for libraries, internet cafes or the providers of WIFI hotspots to require photo identification before allowing members of the public access to the internet.

The second reason Section 92A is seen as unworkable and unfair is that Parliament has provided little guidance as to who might be identified as a repeat infringer other than to say in an unhelpfully circular fashion, under s 92A(2), that it means “a person who repeatedly infringes the copyright in a work by using one or more of the Internet services of the ISP to do a restricted act without the consent of the copyright owner.”

Internet users can be potentially disconnected on weak and flimsy evidence. There is no penalty attached to making an unjustified allegation of infringement. Absent too is any means for ISPs to have claims of infringement independent verified. ISPs are veritable piggies in the middle. Even if they act in good faith they are exposed in two directions: to those they disconnect unjustifiably and to copyright owners if they do not. Furthermore, even where a work exists and has clearly been infringed, pinpointing who the real infringer is will not always be easy when an internet account is used by several persons in a business or organisation.

While the government has deferred enforcement of the amendment (ostensibly until March 27) work is meant to be done not on drafting a better and clearer law but on hammering out a voluntary enforcement code acceptable to both copyright owners (particularly those with rights in movies, TV shows and music) and internet service providers. Should this not eventuate, the government has indicated that the amendment will be suspended".

The IPKat is most impressed at the degree of concern that has been expressed and very much hopes that a fair and workable settlement which is agreeable to both sides can be found. Merpel however wonders whether the blacking out of a Twitter profile by a celebrity isn't the ultimate act of pathetic gesture politics.

2 comments:

I felt that some of the alarm expressed at this section was over-stated or mis-stated. I felt so strongly about it I even set up a blog and blogged about it.

The extended definition of ISP also applies to the protections contained in the act for ISP's copyright liability. Schools, internet cafes and people running open wifi base stations do benefit enormously from that protection.

The fact that the repeat infringer policy requirement is free standing is a bit odd. That may be positive since it is not a pre-condition of being protected from liability but it may be treated that way.

Its also true that ISPs can be browbeaten into doing much worse things (compare the Eircom deal to the proposed repeat infringer policy in NZ) so maybe this is a reasonable compromise. Though I don't like it.

Maybe your Minister Lammy can learn a lesson here - for example with respect to extending the term for sound recordings. He might wish to pay more attention to independent experts and real evidence, rather than only to lobbyists.

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